Nixon Electric Ltd. v. Arcade Building Maintenance Co. and Sandar, (1986) 70 A.R. 268 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 03, 1986
• Citations: (1986), 70 A.R. 268 (QBM)

Nixon Electric Ltd. v. Arcade Building (1986), 70 A.R. 268 (QBM)

MLB headnote and full text

Nixon Electric Ltd. v. Arcade Building Maintenance Co. Ltd. and Sandar

(No. 8603 05135)

Indexed As: Nixon Electric Ltd. v. Arcade Building Maintenance Co. and Sandar

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

April 3, 1986.

Summary:

Nixon leased a building to Independent, who in turn sublet a portion of the building to Arcade. Independent defaulted and Nixon terminated the main lease. Nixon applied for a declaration that the sublease was also terminated.

A Master of the Alberta Court of Queen's Bench held that the sublease was terminated by the termination of the main lease, but that the parties had entered a verbal lease. The Master ordered a trial of the issue of the disputed term of the verbal lease.

Landlord and Tenant - Topic 2261

The lease - Statute of Frauds - General - A Master of the Alberta Court of Queen's Bench discussed the effect of ss. 1, 2 and 4 of the Statute of Frauds on a landlord's claim that a verbal lease did not comply with the Statute - The Master stated that a verbal lease not exceeding three years was effective against the landlord if the tenant was in lawful possession and was not bringing an action on the lease; the landlord cannot use the Statute as a sword to overcome a factual dispute about the term of the admitted verbal lease - See paragraphs 15 to 34.

Landlord and Tenant - Topic 5525

Subleases - For less than lessee's term - Termination of main lease - Effect of - Nixon leased a building to Independent - Independent sublet a portion of the building to Arcade, for a portion of the term of the main lease - Independent defaulted and Nixon terminated the main lease - A Master of the Alberta Court of Queen's Bench held that termination of the main lease terminated the sublease, because the sublease was dependent upon the continued existence of the main lease - See paragraphs 12 to 14.

Cases Noticed:

Imperial Oil v. Whissell Enterprises (1985), 62 A.R. 321 (Q.B. Master), refd to. [para. 9].

W.C. Fast Enterprises v. All-Power Sports (1973) Ltd. (1981), 29 A.R. 483; 16 Alta. L.R.(2d) 47 (C.A.), refd to. [para. 9].

Evans Coleman and Evans v. R.A. Nelson Construction (1959), 27 W.W.R.(N.S.) 38 (B.C.C.A.), refd to. [para. 10].

Roan Holdings v. Victoria Wood Development Corp., 58 D.L.R.(3d) 17 (Ont. C.A.), refd to. [para. 14].

Carter v. Irving Oil Co., [1952] 4 D.L.R. 128 (N.S.S.C.), refd to. [para. 22].

Eastcal Investments v. Whissell Enterprises (1981), 25 A.R. 92 (C.A.), appld. [para. 27].

Guimond v. Sornberger (1981), 25 A.R. 18 (C.A.), refd to. [para. 36].

Statutes Noticed:

Statute of Frauds (Alta.), sect. 1 [para. 19]; sect. 2 [para. 20]; sect. 4 [para. 21].

Counsel:

D.B. Weary, for the applicant;

F.N.T. Vanderkley, for the respondent.

This application was heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 3, 1986: